Saturday, December 31, 2011

The Boston police department solves about one out of every three murders. That is about half of the national clearance rate of 65 percent. Chief Edward F. Davis is committed to improving this rate by a dramatic overhaul of the homicide investigation protocol.

"My goal is to improve the clearance rate,” Boston police Commissioner Davis told the Boston Herald. “To get over the national average (of 65 percent) — and I think that’s possible — we need to examine best practices. I want to shoot for the stars with this.”

Davis said the last time a serious study of investigative techniques took place was 1975. “This is the first time in 35 years that anyone will take a hard look at what detectives do,” he said. He intends to copy the "British model," reported the Herald.

The keys to the British model are setting strict protocols for approaching each homicide and sending teams of detectives and crime scene specialists, known as “murder squads,” to work the slaying scene in the first 48 hours while clues and witness memories are still fresh. The British rapidly flood murder scenes with a swarm of investigators and forensic experts resulting in a 90 percent clearance rate.

The “golden hour,” immediately after the call comes in, is critical. That’s when decisions that lead to quick arrests and successful prosecutions are made, Eugene O’Donnell, a professor of police science at John Jay College of Criminal Justice in New York, told the Herald.

“Some people are looking at the victim’s profile, some people are looking at physical evidence, witnesses, the location,” O’Donnell told the Herald. “People are working in tandem, but comprehensively. There’s no one out there who will not have a hand on their shoulder and be asked, ‘Did you see something?’ ”

British “murder squads” also employ common standards for all homicide probes that are rigorously followed — and strictly classified and thus not shared with the public, Martin Innes, head of the police science institute at Cardiff University’s School of Social Science in Wales, told the Herald.

Friday, December 30, 2011

The day after Christmas, Charles Lane’s column in TheWashington Post touted America's dramatic decline in crime. He gleefully suggested that, "With luck, the United States could soon equal its lowest homicide rate of the modern era: 4.0 per 100,000, recorded in 1957."

Like most observers of the criminal justice system, Lane is puzzled by the sharp decline in crime. Lane also suggested declining crime rates have a social and psychological benefit. He writes that “only” 38 percent of Americans say they fear walking alone at night within a mile of their homes.

The survey Lane cites seems to contradict his premise. Gallup also found, despite the decline in violent crime since the mid-1990s, "the majority of Americans continue to believe the nation's crime problem is getting worse." Sixty-eight percent of those surveyed say there is more crime in the U.S. than there was a year ago.

How can there be less fear of crime if more than two-thirds of Americans believe crime is on the rise? Although the number of people who fear walking the street is lower than it was 30 years ago, it is up eight percentage points from 2001. More importantly, fear of crime has had a healthy impact on crime rates. This phenomenon is often overlooked when analyzing declining crime.

The fear of crime, realistic or not, has played a significant role in reducing crime. Experts may not say it and the average American may not admit it, but decreasing crime rates have come at a precious cost -- the sacrifice of personal liberty. James Q. Wilson, a renowned criminologist at Boston College recently wrote in The Wall Street Journal, “Another possible reason for reduced crime is that potential victims may have become better at protecting themselves by equipping their homes with burglar alarms, putting extra locks on their cars and moving into safer buildings or even safer neighborhoods.”

Homes and businesses across the country have taken measures to become more secure. What was once considered extreme is now common place -- security systems, spot lights, motion detectors, metal gates over front doors, video surveillance, car alarms, mace, pepper spray, stun guns, hand guns, personal self-defense training, even architectural design with crime prevention in mind.

Driving around rather than through some neighborhoods, avoiding a dimly lit parking lot or spacious parking garage may be accepted as prudent. But it has nonetheless altered the freedom to live and travel as one chooses.

Lane calls falling crime rates the most important social trend of the last 20 years. The most important question may be why does crime continue to fall? Many experts extol the virtues of incarceration, demographics, entitlement programs, concealed carry, a decline in demand for crack cocaine, even an increase in abortions.

Criminologists, sociologists and economists can no longer ignore the “fortification of America” as a leading factor in declining crime rates.

Thursday, December 29, 2011

Florida is exploring options that would prevent a suspect from going to prison based solely on the testimony of jailhouse informants, unless that testimony was found reliable by a judge prior to trial, reported the Orlando Sentinel.

Florida's Innocence Commission, the blue-ribbon panel working to prevent future false convictions could recommend that Florida become the only state in the nation that would require judges to review the reliability of jailhouse informants — as well as any witness with pending criminal charges — before allowing them to testify at a felony trial.

The state currently requires a pretrial reliability test for scientific evidence, Attorney Henry "Hank" Coxe III, a panel member and former president of the Florida Bar told the Sentinel. If it requires a test for that, it should also for "something this critically important."

According to the Innocence Project, a New York nonprofit that works to free the innocent, 15 percent of all wrongful convictions later cleared by DNA testing featured false testimony by jailhouse informants. In murder cases, it's 50 percent.

A study by two University of California-San Francisco psychologists found that inmates tend to be very good liars. The study found that deceptive inmates were often successful at fooling people. The group they were least able to fool was U.S. Secret Service, who correctly identified deception 64 percent of the time.

Only one state — Illinois — requires a judge to review before trial whether a jailhouse informant's testimony is reliable and only for death-penalty cases, according to the Sentinel.

Wednesday, December 28, 2011

Two months ago, a Gallup poll found despite a sharp decline in the United States' violent crime rate since the mid-1990s, "the majority of Americans continue to believe the nation's crime problem is getting worse, as they have for most of the past decade." Currently, 68 percent say there is more crime in the U.S. than there was a year ago, 17 percent say less, and eight percent volunteer that crime is unchanged.

That number is not unique to the the U.S. A recent poll in the U.K. found very similar results. Nearly two-thirds of people believe that crime in England and Wales is on the rise despite levels falling to their lowest for 30 years in 2010, according to the Guardian.

The fear of crime can have a healthy impact on crime rates. I will examine this premise in more detail this Friday in my Pittsburgh Post-Gazette blog The Cautionary Instruction.

Tuesday, December 27, 2011

As governor of Massachusetts, Mitt Romney refused to grant a single pardon. Not one offender engendered enough compassion in Romney for him to grant a pardon.

Romney, served as governor from 2003 to 2007, he has proudly advertised his record of granting no pardons, saying he did not want to overturn the decision of a jury. According to ProPublic.com, Romney received requests for 172 pardons and 100 commutations. The state's Advisory Board of Pardons recommended that he approve more than a dozen applications.

Romney plays-up his conservative credentials yet ignores that the founding fathers acknowledged pardons as an important part of the criminal justice system. Since this country's inception it has been acknowledged that questions of guilt and innocence are best left to the citizenry. This fundamental right introduces an element of fallibility into the process, mistakes will be made. Some who are guilty will go free, some who are innocent will be convicted.

Pardons are a means to interject compassion and mercy into a somewhat mechanical process. Without the possibility of compassion and mercy, Alexander Hamilton argued, "justice would wear a countenance too sanguinary and cruel." Another words, justice would have a cruel and bloody face.

Romney may not have taken heed of the founding fathers, but he did have sense of history when he refused every single pardon that came before him. Approving a pardon can be a risky move for a governor with national ambitions, reported ProPublica.com. A Massachusetts furlough program that released a convicted murderer, Willie Horton, who went on to rape a woman and beat her fiancé, became a major point of attack against former Massachusetts governor Michael Dukakis in his 1988 presidential contest with George H. W. Bush.

Massachusetts does not have the death penalty, so Romney never faced a pardon that meant the difference between life and death. Romney did introduce a bill to reinstate the death penalty for some serious crimes. He touted his death penalty plan as 100 percent foolproof. Even the Massachusetts legislature was not fooled by that assertion. Romney's effort did not succeed.

Texas Governor Rick Perry allowed the executions of 238 convicted killers. Texas is the most prolific state in the country in terms of executions. However, Perry has pardoned 178 people in his nearly 11 years in office. In his six years as Texas governor, former President George W. Bush pardoned only 21, according to ProPublica.com.

Monday, December 26, 2011

A recent study published in the Journal of the American Academy of Pediatrics found a significant increase in the number of young people who report being arrested or detained for a criminal offense. The study, the first since the 1960s to look at the arrest histories of young adults, found that 30.2 percent of 23-year-olds reported having been arrested for an offense other than a minor traffic violation.

That figure is significantly higher than the 22 percent found in a 1965 study that examined the same issue. The increase may be a reflection of the justice system becoming more punitive and more aggressive in its reach during the last half-century, reported the New York Times .

Alfred Blumstein, a professor at the Heinz College at Carnegie Mellon University, suggested today’s young people face arrest for drugs and domestic violence, which were unlikely offenses to attract police attention in the 1960s. "There's a lot more arresting going on now," he said.

For example the war on drugs in New York City. Low-level marijuana possession offenses are the number one cause of arrest in the city costing taxpayers a whopping $75 million a year. Over 70 percent of those drug arrests are of young people ages16-29.

The arrest frenzy, especially among young people has long term implications. I’m not suggesting that teens and young people get a pass on serious crime that harms innocent people. But, whatever happened to taking a kid home and letting a parent dish out some punishment that won’t saddle the “offender” with a criminal record.

The collateral consequences of a criminal conviction are often harsher than the immediate consequences of the punishment. The American Bar Association has identified more than 30,000 laws that limit job options for people with a record.

Sure community service, a fine, even some jail time are real inconveniences for young people. But, the inability to get into college, the loss of a job or the inability to get a job, disqualification from professional licensure, disenfranchisement, deportation and the social stigma of a conviction are lifetime sentences.

In Pennsylvania, the only way to get a youthful conviction off an offender’s record, with few exceptions, is a pardon from the governor. There is no expungement process for nearly all the criminal indiscretion a young person might commit.

The open lewdness charge for urinating behind a car while attending a college football tailgate party will be a stain on a young person’s record for life. When we think of fighting crime is this really what we contemplated?

Sunday, December 25, 2011

Carla Hinton of the Daily Oklahoman shared a different kind of Christmas story this holiday season. She wrote about the efforts of the Redeeming the Family's Oklahoma Messages Project. The project provided an opportunity for inmates to reconnect with their families through video taped massages for the holidays. The article is worth reading on this wonderful Christmas morning.

Inmates send holiday messages of love to their families
Gregory Fagan, of Ardmore, won't be home for Christmas, although the Oklahoma inmate will talk to his family, read an inspirational book and even sing a song to his loved ones as they gather for the holiday.

“Grandpa, a year ago, was behind the fence. Grandpa stumbled and God has picked me up and dusted me off,” Fagan said, looking into a video camera as his message was being taped.

Expressing his remorse for not teaching his children and grandchildren Scripture and Christian songs, Fagan recited the Lord's Prayer and sang “This Little Light of Mine.”

“I didn't sing to you kids, and I should have,” he said, his voice breaking with emotion, his eyes shining with unshed tears.

Cheri Fuller, of Edmond, founder of the nonprofit Redeeming the Family ministry, said the Oklahoma Messages Project aims to reconnect incarcerated mothers and fathers with their children by giving them an opportunity to tell their loved ones how much they love and miss them.

The project, funded by private donations, is year-round, but sometimes messages are tied to holidays such as Mother's Day, Father's Day and, most recently, Christmas.

Bridge for connecting

Inmates at state and private prisons have participated in the messages project, and feedback from families receiving the videotapes has been extremely positive, Fuller said.

“This is a very good transition — a bridge for re-entry into the family,” she said. “We hear that children watch these DVDs over and over and over again.”

Fuller said helpful guidelines for crafting their messages are sent to inmates who sign up for the project. She said on the day of the taping, the incarcerated men and women select new children's books to read on videotape. The books are donated through a book drive in partnership with Barnes & Noble and churches including Bethany First Church of the Nazarene.

Fagan selected a Bernstein Bears book about giving, while inmate Jared Ball chose to read “The Adventures of My Little Pony” to his 4-year-old daughter.

At the Clara Waters center, volunteers set up two taping rooms where they erected Christmas backdrops featuring Christmas trees and other holiday images. After selecting their books, the inmates gathered in groups of about six to get tips from Fuller and volunteer David Dahlgren on how to create videotape messages that would have the most positive impact on their children.

“This is your time to talk to them when you can't be there,” Dahlgren said. “You're going to do great.”

Fuller also gave the men encouragement.“The priceless part of this is your kids are going to look into your eyes and see the love. Every child needs a blessing from their father.”

Sharing their stories
As the men waited their turn in front of the camera, Fuller said some incarcerated men and women take the opportunity to share a bit of their journey to prison, adding words of remorse and caution designed to keep their children from heading down the same path. She said most inmates keep their messages positive and upbeat, hoping to let their families know how much they care about them, how much they have changed and how much they anticipate regaining their freedom to be together as a family.

Fagan said he entered the prison system after being convicted of possession of a controlled dangerous substance. Fagan said he served a portion of his eight-year sentence for that crime “behind the fence” at Jackie Brannon Corrections Center in McAlester but then was sent back to prison on a four-year sentence for being caught with a gun after a former felony conviction.

He said he had been addicted to drugs and alcohol for much of his life but is now clean and sober and looking forward to moving into a halfway house and getting a job in about four months. Saying he has about one year of his sentence remaining, Fagan praised Glory Bound Ministries and the Baptist General Convention of Oklahoma's prison ministry programs for coming to his aid.

Fagan said his videotaped message would be sent to his six children and eight grandchildren. He said he first found out about female inmates participating in the Oklahoma Messages Project and knew he wanted to be a part.

“It was wonderful to be related to as a dad,” Fagan said.Messages of love

Another inmate, Ball, 24, of Tulsa, held up a picture of his wife and his little daughter before reading a book during his taping session. Ball, who said he was convicted of second-degree burglary and uttering a forged instrument, said he wanted his daughter to know that he keeps the picture close and that he thinks about her all the time.

Andrew Smalle, 31, of Durant, said he wished his 14-year-old daughter a belated happy birthday when he taped his holiday message. Smalle said he was convicted of possession of a controlled dangerous substance. He said when the cameras were rolling, he encouraged his daughter to stay in school and told her he hoped to be home by March.

"I'm proud to be able to speak to my kid from the heart,” he said.

Daniel Cowns, 36, of Oklahoma City, said he was convicted of possession of a controlled dangerous substance with intent to distribute. He said his holiday message would be sent to his wife who would show the videotape with the 15 children they share between them.

“I don't want them to think that just because I'm locked up, I'm not thinking about them,” Cowns said.

Meanwhile, Fuller said she liked to see the men before their taping session and afterward. She said the happiness they express at being able to send a message of love to their families is evident for all to see.
"They're a little nervous at first, and then when they come out they're overjoyed.”

Saturday, December 24, 2011

Pope Benedict visited Rebibbia Prison on the outskirts of Rome for Christmas, reported Reuters. The Pope told prisoner in one of Italy's toughest prisons that overcrowding was a "double sentence" and whatever their offence, it could not erase their dignity.

The 84-year-old pope appeared in good form, reading an address to inmates and delivering unscripted answers to their questions for about half an hour. He greeted a number of them personally in the prison's church.

"I know that overcrowding and degradation in prison can make detention even more bitter," he told several hundred inmates reported Reuters. The prison has 500 more inmates than the 1,240 it was built to hold.

"Prisoners are human beings who are worthy, despite their crime, of being treated with respect and dignity," he said.

According to Reuters, the pope said overcrowding and poor conditions were tantamount to serving "a double sentence" and that authorities should do everything possible to improve the situation.

Friday, December 23, 2011

Overall crime reports in the first half of 2011 dropped 6.4 percent as compared with the first six months of 2011. Murder reports declined 5.7 percent, rapes 5.1 percent and robbery reports 7.7 percent.

Data from the Preliminary Semiannual Uniform Crime Report are based on information from more than 12,500 law enforcement agencies that submitted data to the FBI.

Preliminary figures indicate that, as a whole, law enforcement agencies throughout the Nation reported a decrease of 6.4 percent in the number of violent crimes brought to their attention for the first 6 months of 2011 when compared with figures reported for the same time in 2010. The violent crime category includes murder, forcible rape, robbery, and aggravated assault. The number of property crimes in the United States from January to June of 2011 decreased 3.7 percent when compared with data from the same time period in 2010. Property crimes include burglary, larceny-theft, and motor vehicle theft. Arson is also a property crime, but data for arson are not included in property crime totals. Figures for 2011 indicate that arson decreased 8.6 percent when compared to 2010 figures from the same time period.

Thursday, December 22, 2011

Police departments across the country have been on a gear-buying spree with the aid of more than $34 billion in federal government grants since the Sept. 11, 2001, reported the Center for Investigative Reporting.

The federal grant spending, awarded with little oversight from Washington, has fueled a rapid, broad transformation of police operations in Fargo and in departments across the country. More than ever before, police rely on quasi-military tactics and equipment, according to the Center.

No one can say exactly what has been purchased in total across the country or how it’s being used, because the federal government doesn’t keep close track. State and local governments don’t maintain uniform records. But a review of records from 41 states obtained through open-government requests, and interviews with more than two-dozen current and former police officials and terrorism experts, shows police departments around the U.S. have transformed into small army-like forces.

Here are some examples cited by the Center, In Montgomery County, Texas, the sheriff’s department owns a $300,000 pilotless surveillance drone. In Garland County, Ark., known for its pleasant hot springs, a local law enforcement agency acquired four handheld bulletproof protective shields costing $600 each. In East Baton Rouge, La., it was $400 ballistic helmets. In Augusta, Maine, with fewer than 20,000 people and where an officer hasn’t died from gunfire in the line of duty in more than 125 years, police bought eight $1,500 tactical vests. And for police in Des Moines, Iowa, it was two $180,000 bomb robots.

Wednesday, December 21, 2011

This is a troubling time when it comes to the use of the Internet in the courtroom. Faced with rapidly changing technology, judges are struggling to keep jurors from getting and spreading information about current cases online, reported Stateline. Doing online research on the defendant’s criminal record or consulting Facebook friends on a vote for sentencing might seem acceptable to some jurors, but it violates the oath “to base your verdict solely upon the evidence” as presented in the courtroom.

Internet research and communication in many cases is not malicious: Jurors may be driven by the desire to make sure they understand all the facts and definitions of complex legal terms. “Jurors are instructed in a number of ways as to their supremacy in judging the facts,” said Michael Hoenig, a products liability lawyer and author of several law journal articles on jurors and Internet use, in an email to Stateline. “Such instructions may, despite admonitions against Internet forays, act to ‘empower’ and embolden jurors into ‘searching for the truth’ even outside the courtroom.”

Even though a majority of states now prohibit Internet research or communication by jurors, studies have found that many jurors misconstrue the instructions or simply refuse to limit their Internet use during a trial. In a pilot study of 500 jurors across the country conducted by the National Center for State Courts (NCSC), researchers found that even after jurors had been instructed that they could not tweet, email, use Facebook, or communicate electronically with friends or family members about a case, one-third of respondents either didn’t understand or incorrectly understood what they could and couldn’t do when it came to using the Internet while acting as a juror, reported Stateline.

Tuesday, December 20, 2011

A recently released RAND Corp. study finds that public defenders in Philadelphia reduce their clients' murder conviction rate by 19 percent and lower the probability their client gets a life sentence by 62 percent, over court appointed counsel, reported the Philadephia Inquirer.

The RAND researchers, who based their conclusions on a review of cases of 3,157 Philadelphians charged with murder from 1994 to 2005, said the findings show "an enormous and troubling chasm" between the effectiveness of defenders - who have a highly regarded team handling homicide cases - and appointed lawyers.

Lawyers get a flat fee to prepare a case for trial: $1,333 if the case is resolved before trial and $2,000 if the case goes to trial. After the first day of trial, lawyers get $200 for three hours or less of daily court time and $400 for more than three hours, reported the Inquirer.

Pennsylvania is the only state to leave the responsibility for funding defenses for indigent murder defendants to the counties - a special hardship for cash-strapped larger cities such as Philadelphia, where impoverished defendants account for 95 percent of murder cases.

Philadelphia pays appointed lawyers in death-penalty cases less than any other Pennsylvania county, according to a petition challenging the flat-fee system filed by Marc Bookman, executive director of the Philadelphia-based nonprofit Atlantic Center for Capital Representation.

Philadelphia Common Pleas Court Judge Benjamin Lerner agreed that "the conclusions should not be a surprise to anybody who has been close to the system for any period of time."

In September, the state Supreme Court appointed Lerner to do fact-finding on the Atlantic Center challenge. One hearing was enough to convince the city's ranking judges that the fee system should be adjusted, and talks are ongoing.

The RAND findings dovetailed with an Inquirer report earlier this year that more than 125 capital-murder trials in Pennsylvania - 69 from Philadelphia - have been reversed or remanded by appeals courts because serious mistakes by defense lawyers deprived the accused of a fair trial.

That number amounts to almost a third of 391 capital convictions in Pennsylvania since the modern death penalty took effect in 1978.

According to the Inquirer, the RAND researchers estimated that Philadelphians wrongly convicted and serving life terms or longer terms than needed add up to 6,400 years of excess prison costs: a taxpayer bill of more than $200 million.

The Christian Science Monitor examined why support for the death penalty seems to be on the decline. Although nearly two-thirds of Americans still support the death penalty the article provides a glimpse into the very different ways the death penalty is handled across the country.

Polls showing the growth of support for life-without-parole sentences over the death penalty hint at changing attitudes that have likely had an effect on other high-profile cases, reported the Monitor. That includes the decision by Pennsylvania prosecutors this month to decline a new capital sentencing hearing for Mumia Abu-Jamal, convicted of murdering a Philadelphia police officer. Instead of facing execution, Mr. Abu-Jamal, who has steadfastly declared his innocence, will remain in prison for the rest of his life.

California meanwhile, is in the middle of a debate over abolishing the practice in part because of its cost. The state, which is expected to hold a referendum on the issue next year, has spent $4 billion on its death row system and has executed 13 people since 1978.

In California, housing death row inmates is almost twice as expensive as housing someone in the general prison population, and trial costs can run up to $1 million per case, up to 20 times the cost of a murder trial where prosecutors are not asking for the death penalty, according to the Death Penalty Information Center.

While a number of states – including Illinois, New Mexico, New York, and New Jersey – have abolished the death penalty in recent years, its application and efficacy continue to be hotly debated even in New England, where only one person has been executed since 1960.

The brutal slaying of a Connecticut family led to the death penalty conviction of one of two convicted killers in a case that has led legislators to reconsider a proposed death penalty ban in that state, with many lawmakers now favoring leaving the sanction in place for only the most heinous crimes, reported the Monitor.

Meanwhile, an attempt in North Carolina to repeal the two-year-old Racial Justice Act, which allows death penalty convicts to argue that their convictions were racially based, failed when Governor Bev Perdue vetoed the repeal attempt on Wednesday. Prosecutors had argued the law is too broad, allowing nearly all 158 prisoners on the North Carolina death row – both black and white – to file for relief under the law.

Monday, December 19, 2011

Harry S. Truman was still president when Harvey Stewart first went to prison. Stewart is probably the longest serving prisoner in the nation. However, the state of Texas may soon parole him, according to the Associated Press.

Stewart is certainly the longest-serving inmate among the 155,000 prisoners in the Texas system, and research by the Associated Press found no one having spent a longer period of time incarcerated. Although, prison officials and historians say they're unaware of any agency or organization that keeps track of all inmates' jail time.

Among other states with significant prison populations, convicted murderer James Moore, 78, has been locked up in New York since 1963. In California, 80-year-old Booker Hillery first went to prison in 1955 for rape and was returned in 1962 for a murder earlier that year while on parole Norman Parker is Florida's longest-serving inmate, arriving in 1967, reported the Associated Press.

Stewart was first sent to prison in spring 1951 after a junk yard heist in Houston got him a 10-year sentence. He was paroled after serving six years but was convicted in 1958 of murdering a man in Beaumont and received a life sentence. Seven years later he broke out of prison for several days, then waited another two decades before being paroled a second time to a halfway house and worked as a dishwasher. By the summer 1986 he was back behind bars, busted for a robbery plot.

The 83-year-old Stewart reassured, in a way, parole officials by telling them, “I'm too damn old to do any robbing...I think I am anyway. My old ticker might kick out on me," reported the Associated Press.

Sunday, December 18, 2011

Deborah Jane Cooper examines in the National Law Journal why prosecutors are rarely disciplined for misconduct. The column uses research by Yale Law School to suggest the states are doing little to hold prosecutors who misbehave accountable.

New research analyzing the policies and procedures for disciplining prosecutors in each state and in the District of Columbia shows that prosecutors are rarely held accountable when misconduct occurs. While the U.S. Supreme Court's Connick v. Thompson decision severely limits the liability prosecutors face for misconduct, and closes one of the few remaining possible channels of civil prosecutorial liability, the existing "ethics regime" the Court entrusts does not currently protect against or regularly sanction instances of prosecutorial misconduct.

Last term, the Supreme Court famously limited municipal civil liability for prosecutors in Connick. In justifying this holding in part by stating that prosecutors are "personally subject to an ethics regime designed to reinforce the profession's standards," the Court pointed to the existence of the American Bar Association (ABA) and state grievance mechanisms that set ethical standards for prosecutors and discipline them when they break the rules.

Saturday, December 17, 2011

Defense Attorney Tom Farrell: "what I would have done, which is get the boys in the car with a few baseball bats and crowbars and take it to the fellow."

Former Penn State University vice-president Gary Schultz and athletic director Tim Curley, had a preliminary hearing in Harrisburg, Pennsylvania on December 16th related to the Penn State sex scandal and cover-up involving Jerry Sandusky. Schultz's attorney, Tom Farrell, predicted his client would be acquitted.

According to ABC News, Farrell also took a shot at Paterno, saying, "I'm an Italian from Brooklyn, and he may not have called the police but he may have done what I would have done, which is get the boys in the car with a few baseball bats and crowbars and take it to the fellow."

Interesting that Farrell said he "may not have called the police," but he would have taken some extreme action like going over and physically assaulting Sandusky. However, his client--who over saw the university police department--chose to do nothing for 10 days. Schultz didn't grab a a bat or crowbar, he didn't pick-up the phone and inform the campus police chief--his direct subordinate. Instead, he waited 10 days to talk to Mike McQueary, then talked with Sandusky and the Second Mile and ultimately deep-sixed the whole matter.

By Farrell's own "old school Brooklyn" standards Schultz failed miserably in responding to the alleged rape of a child on the Penn State campus.

Defense lawyers argued that a perjury charge in Pennsylvania cannot be based solely on one person's oath versus another's. The defense said uncorroborated testimony from McQueary is not enough. Curley's attorney, Caroline Roberto, said prosecutors "will never be able to reach their burden of proof at a trial," in part because McQueary "minimized" the alleged assault to Paterno.

Law enforcement fatalities in the line of duty are up 14 percent this year on top of a whopping 25 percent increase in 2010, according to the National Law Enforcement Officers Memorial Fund in Washington, D.C, reported the Kansas City Star.

Perhaps most troubling is that firearms-related fatalities are likely to outpace traffic-related deaths for the first time in 13 years, Memorial Fund officials said.

The figure is disturbing for industry law enforcement advocates given that December — one of the deadliest months for sworn officers — is far from over. While officials try to determine what triggered the spike some wonder if the economy and an anti-government sentiment have played a role.

“There is dissatisfaction with government and a lot of it is being taken out on law enforcement," Harry Herington, founder of the non-profit agency Ride4Cops told the Star. “Law enforcement are the troops at home. And right now they are being gunned down on our own streets and not because they’re stopping somebody in the middle of a crime.”

Friday, December 16, 2011

Seventy-eight capital punishment verdicts were handed down this year compared to 112 last year, according to the National Law Journal. Executions also decreased from 46 in 2010 to 43 in 2011.

There were several factors that contributed to this year's drop, according to the report. Illinois Gov. Pat Quinn passed legislation to repeal the death penalty; Oregon Gov. John Kitzhaber decided to order no more executions during his term; there was a drop in crime; and finally, public distrust of the system grew after Troy Davis of Georgia was executed despite strong doubts of his guilt were made known.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, disagreed. He told the National Law Journal the decline in death penalty sentences isn't due to loss of confidence in the system, but rather to the drop in the murder rate.

Scheidegger said the past decade's Gallup polls have shown support for the death penalty remaining steady and high with the exception of this year's poll after the Troy Davis execution.

According to this year's Gallup poll, 61 percent of Americans approved of the death penalty compared with 64 percent in 2010. This is the lowest the approval rating has been since 1972, when 49 percent of those polled approved of the penalty.

Last week, the House Committee on Oversight and Government Reform again took up the issue of the ill-fated Department of Justice (DOJ) gun trafficking operation known as “Fast & Furious.”

As the hearing came to a close, Committee Chairman Darryl Issa (R-Calif.), compared Attorney General Eric Holder’s conduct to that of Richard Nixon’s attorney general before Watergate. Holder likened the ongoing congressional inquiry to Senator Joseph McCarthy’s witch hunt for communists in the U.S. government.

Holder told the committee that he does not plan to comply with additional requests for DOJ records, including Holder’s internal emails regarding his response to the operation. “You stand in contempt of Congress unless you have a valid reason,” Issa told Holder.

Holder responded that not sharing the internal department communications with Congress is consistent with the practice of past administrations.

“John Mitchell responded that way, too,” Issa told Holder, referring to Nixon’s former attorney general, who was later convicted of conspiracy, obstruction of justice and perjury in connection with Watergate.

Holder replied, invoking his own historic allusion, “The reference to John Mitchell: Let’s think about that. … As they said in the McCarthy hearings at some point, ‘Have you no shame?’”

Congressman Issa is off-base comparing Holder to John Mitchell and his role in Watergate. Mitchell was no longer part of the Nixon administration during Watergate. He had resigned as attorney general on February 15, 1972, months before the Watergate break-in.

The Watergate Independent Prosecutor Archibald Cox requested eight recorded conversations taped in the White House, two of which included conversations with Mitchell. The request was refused by the White House. Mitchell had nothing to do with that decision.

When Mitchell testified before the senate Watergate Committee it was in his role as campaign director of Nixon’s 1972 re-election campaign. According to Carl Bernstein, certainly an authority on Watergate, "John Mitchell's testimony to the Watergate committee focused on what he called 'the White House horrors,’” crimes committed by Nixon staffers.

Congressman Issa's allusion indicated, at best, a superficial understanding of history -- or, at worst, an ill conceived attempt to lump Attorney General Holder with America's greatest scandal.

Attorney General Holder's retort was close, but also off the mark. He was referring to what had become known as the Army-McCarthy Hearings. In 1954, Senator McCarthy and his staff were accused of using influence to help a former staff member with an army assignment. The Army’s special counsel Joseph N. Welch disclosed to the New York Times that a young lawyer in his law firm was a former member of a left-wing group while in law school.

Although aware of Welch’s disclosure, McCarthy nonetheless confronted Welch about the young lawyer during the nationally televised hearings. Attorney Welch then famously took on McCarthy, "Have you no sense of decency, sir, at long last? Have you left no sense of decency?"

Thursday, December 15, 2011

Has given several different versions of events in Penn State locker room in 2002

Tim Curley, the former Penn State athletic director, and Gary Schultz, former university vice president, will have their joint preliminary hearing in Bellfonte, Pennsylvania. The men are charged with perjury and failure to report alleged child abuse relating to the Penn State sex scandal and cover-up.

The purpose of the preliminary hearing is to establish that prosecutors have enough evidence to go to trial. Defense attorneys are not expected to call witnesses, according to the Harrisburg Patriot-News, and their cross-examination is limited to the truth of witnesses’ statements. Jerry Sandusky waived his right to a similar hearing and will proceed to trial.

Mike McQueary is the key witness in the case against Curley and Schultz. McQueary told a grand jury that he reported to Curley and Schultz that he observed Sandusky raping a young boy in the shower of the football locker room. The grand jury found McQueary credible, but, since then, he allegedly has emailed friends with details that are inconsistent with the grand jury report. In addition, according to the Patriot-News, McQueary's original verbal account to a friend after the incident and a written account to state police in 2010 contain other inconsistencies, reported the Washington Post.

Jerry Sandusky must be pleading guilty. The former football coach embroiled in the Penn State sex scandal and cover-up gave away a huge opportunity to cross examine the witnesses against him. He had a shot to examine Mike McQueary the embattled eyewitness who has given at least three versions of events in 2002. He gave it all away by waiving his preliminary hearing.

Sandusky’s defense team, in a last-minute turnaround, waived their client’s right to the hearing. For prosecutors, the decision is a clear sign the defense is preparing for a plea deal arrangement, which will automatically send Sandusky to prison without the need for a trial, according to the Christian Science Monitor.

A preliminary hearing is meant for the judge to determine probable cause. Despite that being very likely, locking in victim testimony under oath would have provided an advantage for the defense, which could then wield it against the alleged victims in a trial, says Andrew Pollis, a professor at Case Western Reserve law school.

The hearing provides “a window into what the prosecution’s evidence is, and it helps you prepare for trial so you can refute certain things later,” Mr. Pollis told the Christian Science Monitor. “The advantage of a preliminary hearing becomes moot if [Sandusky] is going to plea.”

Sandusky’s lawyer, Joe Amendola, said he gave up the preliminary hearing in exchange for leniency with regard to his client's bail. That is a huge price to pay, unless Sandusky's legal team is already negotiating some sort of plea.

Wednesday, December 14, 2011

Ohio Governor John Kasich recently indicated that he would rather see welfare recipients who are on drugs get help for the addiction than have their public benefits pulled, reported the Columbus Dispatch. His stance appears to buck Republicans in Ohio and other states seeking to tie benefits to one’s ability to pass a drug test.

“There are a lot of people hurting out there, and so I’m not sure this is the time to start saying to them, ‘If you want to get something, you’ve got to go through these hoops,’ ” Kasich said, responding to a question from the audience after his speech in Columbus to a conference of Ohio county commissioners and engineers.

On tying welfare benefits to drug tests, Kasich listed a host of reasons to pause, including considering the children of parents who fail drug tests, sending people who fail tests to rehab, and privacy laws that could prevent the tests, according to the Dispatch.

“You’ve got to balance the taxpayers off about what’s the common-sense thing to do with the right thing to do, the compassionate thing to do,” Kasich said. “What’s the right thing for the kids?”

Tuesday, December 13, 2011

The Milwaukee Journal Sentinel examined the plight of the dangerously mentally ill. There are 4 million people in the United States with severe mental illness. Only about 40,000, or 1%, are dangerous. Even then, the violence is usually minor - a punch or a shove, said Jeffrey Swanson, a Duke University professor who has studied the correlation between mental illness and violence for more than 20 years, reported the Journal Sentinel.

People with mental illness are 13 times more likely to be a victim of a crime than the perpetrator. Still, the inability to identify who is dangerous and the barriers to getting them care are among the more wrenching failures of our time.

If a man standing in a crowd clutches his chest and collapses, people will rush to help. But if that man has schizophrenia and mumbles or cries uncontrollably, chances are he'll be ignored.

"People are scared of mental illness," Jon Lehrmann, head of the psychiatry department at the Medical College of Wisconsin told the Journal Sentinel. "The natural tendency is to look the other way."

Nor is there an expectation that we should help, as with illnesses that affect other parts of the body.

"The best indication of future violence is a history of violence," Mike McBride, a longtime Milwaukee psychiatrist told the Journal Sentinel.

Sometimes there is no warning at all. Mental illness often doesn't appear until the teens or early 20s.

Monday, December 12, 2011

As a former two term Pennsylvania prosecutor and defense attorney, I have learned that a preliminary hearing can be one of the most crucial stages of a criminal prosecution. The manner in which the prosecution manages the preliminary hearing can have long term implications for a successful prosecution.

During tomorrow’s preliminary hearing for Jerry Sandusky with regard to the Penn State sex scandal and cover-up the Commonwealth of Pennsylvania must present a prima facie case--they must show enough evidence that a crime has been committed and that the defendant is most likely the one who committed the crime.

Tomorrow can be a significant day in the preparation of Sandusky’s defense, as well. The more witnesses the prosecution calls the more Sandusky’s attorney, Joe Amendola, can cross examine those victims and witnesses.

Take the prosecution’s only disinterested witness, Mike McQueary. We have learned that he sent an email that is apparently inconsistent with his grand jury testimony. We have also learned that he told a family friend a story that is neither consistent with his grand jury testimony or his email.

According to the Harrisburg Patriot-News, McQueary told Dr. Jonathan Dranov, a family friend, that he had heard "sex sounds" and a running shower before a young boy peered around the corner of the shower's stall. McQueary told Dranov that he then saw an adult arm reach around the boy's waist and pull him out of view, Dranov told the grand jury, according to the Patriot-News. Sandusky left the shower in a towel seconds later.

Because McQueary said he had not personally witnessed an assault, Dranov said he advised McQueary to report the incident to his superiors at Penn State, but that he should not worry about informing the police, according to ESPN.

On the other hand, McQueary told a friend in an email that he stopped the alleged rape and discussed it with police, something a source familiar with the state's investigation confirmed with ESPN.

McQueary testified before the grand jury that after witnessing the alleged assault, he left the building, called his father and the next day told head coach Joe Paterno what he saw.

In another email reported by NBC News, McQueary told friends that he did the right thing. "I didn't just turn and run ... I made sure it stopped ... I had to make quick tough decisions," he said in the email, according to the report.

Attorney Amendola must be chomping at the bit to get McQueary to give us yet another version. The prosecution must limit Amendola’s ability to go after McQueary. In fact, I would not call McQueary as a witness at tomorrow's hearing.

As a prosecutor I would provide the minimum amount of evidence to get this case bound to the Court of Common Pleas for trial. For a prosecutor—less is more.

A bill has been introduced in the state Senate that would provide $50,000 a year for each year of incarceration for those wrongfully convicted and confined in a Pennsylvania prison.

Senate Bill 1338 provides that all claims of wrongful conviction and imprisonment shall be heard by the Commonwealth Court. The district attorney or attorney general may offer evidence and argue in opposition to a claim for damages, but S.B. 1338 specifically suggests a level of informality with regard to the proceedings. The court may order damages of a minimum of $50,000 for each year of incarceration, as adjusted annually to account for inflation and prorated for partial years served.

The new law would provide that a claimant before the Commonwealth Court would have to prove, by clear and convincing evidence, actual innocence. A claimant can establish actual innocence in one of three ways: (1) being pardoned by the governor because the crime was not committed or if a crime was committed the claimant was not responsible; (2) the conviction was reversed or vacated on grounds consistent with innocence; or (3) a new trial was ordered, and the claimant was found not guilty or was not retried.

Senate Bill 1338's principal sponsor is Senate Judiciary Committee Chairman Stewart Greenleaf. The wrongful conviction compensation plan is part of a package of reforms proposed by the Advisory Committee on Wrongful Convictions. The committee was created in 2006 and the long-awaited report was issued in September detailing, among other things, compensation for the wrongfully convicted.

The advisory committee was not without controversy. The report was far from unanimous and the law enforcement and victim representatives of the committee issued their own independent report.

The independent report took issue with some of the terms included in the compensation portion of S.B. 1338. First, what does "grounds consistent with actual innocence" mean? The compensation bill provides that actual innocence may be proven before the Commonwealth Court if a claimant's conviction was reversed on grounds consistent with innocence. The independent report suggests that the standard is "so broad as to cover nearly all appellate reversals."

The independent report also took exception with the idea that an acquittal after a retrial or the decision not to retry is evidence of actual innocence. The independent report argues that the U.S. Supreme Court has held that an acquittal "does not prove that the defendant is innocent," Dowling v. United States , 493 U.S. 342 (1990).

The independent report succinctly pointed out that the burden of proof in criminal cases requires proving guilt beyond a reasonable doubt. The Supreme Court has made it clear that a jury must acquit "someone who is probably guilty but whose guilt has not been established beyond a reasonable doubt," Gregg v. Georgia , 428 U.S. 153 (1976).

If not guilty is not innocent, will the Commonwealth Court conduct a trial to determine innocence? With the informality that is required by the proposed statute, how is such a trial conducted? We know the burden of proof for guilt is beyond a reasonable doubt — what is the burden of proof for innocence?

If Pennsylvania were to enact a wrongful conviction and imprisonment compensation law, the Commonwealth would join 27 other states that have passed legislation providing some form of compensation. Texas provides the most comprehensive wrongful conviction compensation. Texas pays the wrongfully convicted $80,000 a year for each year of imprisonment and $25,000 a year for each year spent on parole or as a registered sex offender.

The other 26 states vary in the manner and amount of compensation, according to ABC News and the City University of New York. Awards in Massachusetts are capped at $500,000 and in North Carolina the limit is $750,000. In Missouri, only those who are found wrongfully convicted by DNA evidence can receive $18,000 per year for each year of imprisonment.

Utah limits compensation to the wages the state's average citizen earns in a year. New Jersey provides twice the yearly salary of the claimant the year before he or she was convicted. New Hampshire offers a maximum of $20,000 for the entire period of wrongful conviction and confinement. In Montana, claimants are only entitled to financial aid to attend a state college.

In 2004, the federal government enacted legislation that required compensation of $50,000 for every year of wrongful federal imprisonment and $100,000 per year if the time was spent on death row.

In states where wrongful conviction legislation has been enacted there is still a disparity in who ultimately receives compensation. A review of California's compensation scheme by California Watch found from 2000 to 2010, the state awarded funds to 11 of the 132 claimants who sought compensation. California denied 44 claims and nearly half of all claims never reached a final disposition.

Even in Pennsylvania, without a compensation statute, the outcome for those wrongfully convicted can be wildly different. Two men in Allegheny County, Thomas Doswell and Drew Whitley, were freed from prison when their convictions were overturned based on new DNA evidence. According to the Pittsburgh Tribune-Review , Doswell was convicted of rape in 1986 and spent 19 years in prison. Whitley was convicted of murder in 1989 and spent 17 years in prison. Both men sued in federal court. Doswell was awarded $3.8 million. Whitley received nothing — his case was dismissed.

Dauphin County District Attorney Edward Marsico, the former president of the Pennsylvania District Attorneys Association, is satisfied with the way Pennsylvania has resolved compensation issues. The compensation bill is "unnecessary, we have a system that can compensate those who were wrongfully convicted ... [We] shouldn't replace the court system," Marsico told KDKA-AM in Pittsburgh. Marsico also expressed concern for crime victims who are often not made whole especially in these difficult economic times: "Victim programs have been dramatically reduced."

Pennsylvania crime victims can apply through the Victims Compensation Assistance Program for up to $35,000 in restitution for losses incurred at the hands of a convicted offender.

"This is really about inequity. You could end up being paralyzed for life [from a crime], and all you get is $35,000. Period," Carol Lavery, director of the state Office of the Victim Advocate, told the Tribune-Review . "A person who didn't commit the crime should be compensated. I can't argue against that. If we're willing to pay millions to people who are truly innocent, there should be more equity."

In California the early release of inmates has become the means by which the state is complying with a U.S. Supreme Court order to lower its prison population. As the state empties its prisons county jails struggle to accommodate state prisoners flowing into their facilities.

A U.S. Supreme Court decision requires California to lower its prison population by 30,000. To meet the mandate, those convicted of certain crimes who until now served their sentences in state prison now must serve their time in a county jail. No inmates are being moved from state prisons to county jails. But as these people are sentenced, they will be sent to a county jail rather than state prison, according to the Los Angeles Times.

The L.A. County Sheriff is hoping to deal with the influx of state prisoners by developing alternatives to custody — such as electronic monitoring — for low-risk offenders awaiting trial. The Sheriff’s Department oversees the county jail. According to the Times, L.A. County's jails are expected to house as many as 8,000 state prisoners by mid-2012. Los Angeles County prosecutors said in a report that the numbers could fill up the jails as early as this month.

Some counties, including Los Angeles, are under court order to prevent jail overcrowding. So officials said that some inmates will be released to make way for the state prisoners. Some counties — including Los Angeles, Orange and San Bernardino — have also reported receiving significantly more state prisoners from courts than the state projected, reported the Times.

State officials and some sheriffs believe the higher-than-projected number of state prisoners being sent to jails has occurred in part because defense attorneys waited until realignment took effect to settle their clients' cases. By doing that, the attorneys were assured that their clients would get jail time instead of prison time.

Sunday, December 11, 2011

Ohio was facing an $8 billion budget shortfall in 2010 when Gov. John Kasich took office. He proposed an ambitious and unprecedented plan to balance the corrections portion of the budget — sell five prisons to private companies.

Lake Erie Corrections Institution, located in Ashtabula County, was the only prison sold. It’s the first state prison in the nation to be sold to a private company.

Correction Corporation of America (CCA) bought the facility for $72.7 million. The state will pay CCA $44.25 per inmate per day in addition to an annual $3.8 million ownership fee.

CCA may be familiar to many because the company operates the Northeast Ohio Correctional Center in Youngstown. The state’s ability to sell only one of five prisons slated for sale was not a concern for the Department of Rehabilitation and Correction. “It’s not a disappointment at all,” Annette Chambers-Smith, deputy director of administration told the Cleveland Plain-Dealer, “... we thought we would need to sell all five of them to net $50 million.”

Major player

CCA operates 60 facilities in 19 states and the District of Columbia. Those facilities have more than 80,000 beds and currently house about 75,000 offenders. CCA owns 44 of the facilities it operates, representing more than half of all the private prison beds nationwide. According to the company website, CCA with its 17,000 employees is the fifth-largest corrections system in the nation, behind only the federal government and three states.

Privatization may seem like a promising way to generate revenue and cut costs in difficult economic times. Ohio’s prisons are over capacity. As of October, Ohio’s 30 prisons had the capacity to house 38,196 inmates, but actually confined 50,334.

There is an incarceration bubble in America. That bubble may burst as budget woes force states to reduce prison populations andthe federal government look for alternatives to an immigration policy that has been a boon to private prisons.

Prison reduction efforts are obviously not part of the package offered by corporate-run prisons. They have no incentive to explore alternatives to incarceration, such as electronic monitoring, half-way houses or other diversionary efforts to reduce the number of non-violent offenders behind bars.

Ohio, like many states, is trying to reduce its prison population. Nonviolent offenders often serve the shortest sentences. There are about 12,000 inmates in Ohio serving state sentences of less than one year. Some estimate that reducing short term sentences in state prison could trim inmate population by about 4,000 within four years.

The Texas-based criminal justice blog Grits for Breakfast recently reprinted portions of CCA’s latest annaul 10-K report filed with the U.S. Securities and Exchange Commission. CCA acknowledged that the company is “dependent upon the governmental agencies with which we have contracts to provide inmates for our managed facilities. We cannot control occupancy levels at our managed facilities ... a decrease in our occupancy rates could cause a decrease in revenues and profitability.”

The report continues, “The demand for our facilities and services could be adversely affected by…leniency in conviction or parole standards and sentencing practices.”

Federal threat

CCA is not ignoring the threat of leniency or a reduction in occupancy. According the Chattanoogan, citing a report from the National Institute on Money in State Politics, CCA hired 199 lobbyists in 32 states between 2003 and 2010. On the federal level, CCA spent more than $18 million on lobbying between 1999 and 2009.

CCA’s Ohio lobbyist, Don Thibaut, served as Gov. Kasich’s chief of staff when he was in Congress, says The Associated Press. The connections go beyond a lobbyist. Kasich’s corrections director Gary C. Mohr spent five years as a consultant for CCA.

The incarceration bubble, like the real estate bubble before it, will burst, which could mean trouble for Ohio taxpayers.

A 12-year-old boy could spend life in prison when he is tried as an adult for the murder of his two-year-old brother, reported the Huffington Post.

Christian Fernandez is the youngest person ever to be charged with first-degree murder in the city of Jacksonville. Prosecutors say the pre-teen "acted with premeditation" when he allegedly shoved his two-year-old brother into a bookshelf, leaving the boy with a fractured skull and internal bleeding to the brain, reported CBS News.

Prosecution offered a plea that would have freed Fernandez on his twenty-first birthday. Defense attorneys did not accept, however, on the basis that Fernandez would be forced to admit murder and likely serve the final three years of his sentence in an adult prison, according to the Florida Times-Union.

This case is similar to the Pennsylvania case of Jordan Brown. The 11-year-old Lawrence County boy allegedly shot his father’s pregnant girlfriend as she slept. He then left with this younger sister and caught the bus for school.

Brown was charged as an adult. A judge refused to transfer the case from adult court to juvenile court. The decision was based on Brown’s refusal to accept responsibility for the murder. After an appeal to the Pennsylvania Superior Court the case was remanded back to the trial court. The same judge who refused to transfer the case to juvenile court, changed his mind and sent Brown’s case to the juvenile court.

If Brown was convicted as an adult he would have been the youngest person in the United States ever sentence to life in prison with the possibility of parole. Brown is awaiting a juvenile adjudication hearing.

Fernandez's mother, 25-year-old Biannela Susana, also faces aggravated manslaughter and culpable negligence charges relating to the incident. Prosecutors say Biannela, who gave birth to Fernandez when she was 12-years-old, first informed cops that her younger son injured himself in a fall.

Saturday, December 10, 2011

Rep. Darrell Issa (R-Calif.), the chief House investigator into the botched gun trafficking operation Fast & Furious, compared Attorney General Eric Holder’s conduct to that of Richard Nixon’s attorney general during Watergate. Holder likened the congressional inquiry into his department’s actions to Sen. Joseph McCarthy’s witch hunt for communists in the U.S. government, reported Politico.com.

The Justice Department turned over emails related to some inaccurate information the department had provided to Congress in February. But Holder said last week that he doesn’t plan to comply with additional congressional requests for records of the department’s subsequent reaction to the controversy, including emails he may have exchanged with colleagues about the burgeoning scandal.

“You stand in contempt of Congress unless you have a valid reason,” Issa told Holder at the end of a daylong House Judiciary Committee hearing.

Holder responded that not sharing the internal department communications with Congress is consistent with the practice of past administrations, reported Politico.com.

“John Mitchell responded that way, too,” Issa said caustically, referring to Nixon’s attorney general, who was convicted of conspiracy, obstruction of justice and perjury in connection with Watergate.

“Was that called for?” an exasperated Holder replied, then invoked his own provocative historic allusion. “The reference to John Mitchell: Let’s think about that. … As they said in the McCarthy hearings at some point, ‘Have you no shame?’”

First, Issa is off-base comparing Holder to John Mitchell and his role in Watergate. John Mitchell was no longer part of the Nixon administration during Watergate. He had resigned as attorney general to oversee President Nixon's re-election committee.

When Mitchell testified before the senate Watergate Committee it was in his role as campaign director not as member of Nixon's cabinet. According to Carl Bernstein, certainly an authority on Watergate, "John Mitchell's testimony to the Watergate committee focused on what he called 'the White House horrors,' which included burglaries ordered by the president, illegal wiretapping (of reporters, among others), political espionage and sabotage, use of the I.R.S. to punish Nixon's supposed enemies, and the smearing of the president's opponents through false news stories and planted evidence. Mitchell blamed the men closest to the president in the White House."

Attorney General Holder's retort was close, but again off the mark. He was referring to what had become know as the Army-McCarthy Hearings. In 1954, Senator McCarthy and his staff were accused of using influence to help a former staff member with an army assignment. McCarthy made a personal agreement with the Army's special counsel Joseph N.Welsh not to bring up the background of a young lawyer who was former a member of a communist group and a member of Welsh's law firm.

McCarthy in spite of the agreement brought up the issue in contravention of the agreement. Attorney Welsh then famously confronted McCarthy during the televised hearing, "Have you no sense of decency, sir, at long last? Have you left no sense of decency?"

Moratorium Project Examining Death Penalty Laws Nationwide
An American Bar Association study released this week said that Kentucky's death penalty is seriously flawed and that executions in the state need to be halted until lawmakers and others correct problems cited in the study, reported the Lexington Herald-Leader.

The study is part of the ABA Death Penalty Moratorium Implementation Project. From 2003 to 2007, the Moratorium Project undertook its first series of assessments on the administration of capital punishment in eight U.S. states--Pennsylvania, Ohio, Indiana, Arizona, Tennessee, Georgia, Alabama and Florida. The series includes Kentucky and Missouri. The "study" in each state has found flaws and demanded as the title of the studies imply--a moratorium on the death penalty.

The problems in Kentucky include a lack of protections against executing seriously mentally ill people; high case loads and low pay for public defenders who represent people accused of capital crimes; no rule to preserve evidence for as long as someone is in prison, meaning they might miss a chance for DNA tests that could exonerate them; and confusion among jurors about their role in deciding whether to recommend a death sentence.

According to the Herald-Leader, the study found that of the 78 people sentenced to death in Kentucky since 1976, 52 later had that initial sentence overturned because of errors at the trial.

Attorney General Jack Conway said in a statement that he disagreed that the state's legal system is broken. Conway said prosecutors carefully consider which people they'll seek a death sentence for. He said trial judges make sure defendants' rights are protected, juries take their job seriously, and appeals courts look over the cases carefully for errors, reported the Herald-Leader.

"I am reviewing it carefully," he said of the report, "but I do not at first glance believe its analysis warrants a suspension of the death penalty."

In 1999, Guadalupe Esparza abducted 7-year-old Alyssa Vasquez from her San Antonio home when her babysitter was at a neighbor's place, reported Reuters. Her strangled body was found in a nearby field. He was executed by lethal injection on November 16, 2011, according to state prison officials.

On the night Alyssa died, Esparza had called and visited her home, looking for her mother, according to an account of the case by the Texas attorney general's office. DNA testing showed the sperm found on Alyssa's body belonged to Esparza.

"To the family of Alyssa Vasquez, I hope you will find peace in your heart," Esparza, 46, said in his final statement, according to Jason Clark, a Texas Department of Criminal Justice spokesman.

"My sympathy goes out to you. I hope you find it in your heart to forgive me. I don't know why all this happened."

According to Reuters, Esparza had a long criminal record, including a 1985 aggravated sexual assault conviction for beating a woman with a loaded gun and forcing her to have sex with him. And in 1984, he was convicted of assault causing bodily injury for hitting a man with a metal pipe and a baseball bat.

Alyssa's mother, Diana Berlanga, attended the execution with a few other family members, Clark said.

"The day he gets his death, I'll be smiling," Berlanga said earlier this year, according to the San Antonio Express-News. "I cannot forgive. I'll tell God, 'Forgive me for not forgiving him.'"

Two of Esparza's friends attended the execution, and just before he died, he asked them to say goodbye to his family, reported Reuters.

"Jesus, take me home; take me away from this place," Esparza said in his final statement, according to Clark.

Esparza was the 13th person executed this year in Texas, which has executed more than four times as many people as any other state since the United States reinstated the death penalty in 1976, according to the Death Penalty Information Center.
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Friday, December 9, 2011

Robert Champion, a drum major with Florida A&M University’s “Marching 100” Band, died last month. His death came hours after performing at the annual Florida Classic football game between A&M and Bethune-Cookman University.

Champion was found unresponsive on a bus parked outside a hotel after the game. Police have not been specific, but said they believe hazing played a part in his death. University officials have been more direct. As a result of hazing, four students were expelled from the school, and another 30 were dismissed from the band, according to A&M President James Ammons.

As with the Penn State and Syracuse sex scandals there appeared to be a code of silence within the Florida A&M community which permitted hazing in the form of assault, and now even murder, to continue for years. Hazing is a crime in Florida -- just as it is in Pennsylvania -- and 42 other states across the country.

A lawyer hired by the Champion family said that this was not the first such hazing report involving the band and the university, claiming administrators did not do enough to stop the practice from taking place.

"The university was on notice that this was a problem within the band," Attorney Christopher Chestnut said. "They turned a blind eye and a deaf ear."

Over the years, former A&M band director Julian White claims to have dismissed about 100 band members for hazing. He recently shared with CBS News dozens of letters he claims to have sent to administrators pleading for a tougher response to the band’s hazing problem. "More students should have been terminated from school," White said.

However, a year ago, White responded to a Frank Deford report on hazing among band members of historically black colleges and universities (HBCU) for HBO’s Real Sports. White said that Deford was just a prejudiced outsider who "made it seem like black schools are the only places where it's happening ... That's just not the case."

Whether it was happening at other universities is not the issue. It was happening at A&M and the university permitted it to continue. Just as some suggest that raping and sexually assaulting children can be overlooked at big time athletic programs, it now becomes apparent, as Deford suggested in a recent NPR commentary, abuse can happen where “HBCU bands are the headliners -- literally more popular than the football teams that they play for at halftime.”

The abuse scandals on America’s campuses are not about the culture of college sports. It is about the culture of money. Football and basketball bring in enormous amounts of cash -- so much so that university officials might choose to ignore sexual assault. Where bands fill stadiums and get television contracts they’re king. And so it goes, on those campuses administrators might choose to ignore a pattern of aggravated assault.

Virginia should be the model for administering the death penalty nationwide. In Virginia the death penalty is more than a symbolic penalty. Death sentences are reviewed and carried out. The death penalty is a deterrent in Virginia.

Virginia inmates spend half the time, 7.1 years, from sentencing to execution than the average wait nationally, and the relatively large number of executions and fewer death sentences here has left just 11 killers on death row, reported the Richmond Times-Dispatch.

Virginia's tally through 2010 — 108 executions out of 149 death sentences — is in large part a result of fewer reversals, historically at least, by the Virginia Supreme Court and the 4th U.S. Circuit Courts of Appeals.

By comparison, California, which has conducted just 13 executions since 1977, has a death-row population of more than 700, among them Alfredo Prieto, condemned in 1992 for the rape and murder of a 15-year-old girl in Ontario, Calif.

From 1977 through 2010, fewer people were sentenced to death in Virginia than in other states with similar populations: Ohio, 230; North Carolina, 443; and Georgia 321. Virginia's per-capita execution rate, however, ranks fourth nationally. Alabama and South Carolina, with populations roughly half the size of Virginia, sentenced to death 439 and 194 people, respectively, during the same period.

Robert Blecker, a professor at the New York School of Law, supports execution for the worst offenders and said that on its face, Virginia's record appears to be exemplary.

"It is a ratio to which all states with a death penalty should aspire," Blecker told the Times-Disptach. Blecker is the author of the recently published "Let the Great Axe Fall," based in part on 12 years interviewing hundreds of killers at the District of Columbia's former Lorton Reformatory in Fairfax County.

"I heard stories from guys who murdered in D.C. but would not in Virginia because of 'what that state has waiting for me.' I can tell you that the guys feared Virginia's death penalty — whether from the high ratio, or for other reasons," he said.

Blecker said fewer death-case reversals by appeals courts here does not necessarily mean they are not doing a good job reviewing cases — it could mean that abolitionist judges in other parts of the country are finding too many errors.

"No trial is perfect," Blecker said. The question is whether errors were serious enough to have changed the outcome. He said judges on some appeals courts are using minor errors as pretexts for reversals.

"It could be that the 4th Circuit is really calling it accurately," he told the Times-Dispatch.

But, said Blecker, Virginia's execution ratio could obscure problems.

"We should condemn very, very few to death, and execute almost all of them," he said. He said it appeared that Virginia, with 15 death-eligible crimes, might want to cull the list.

"Ideally, the legislature should construct a death-penalty statute that truly isolates only the worst of the worst of the worst," he said.

Thursday, December 8, 2011

A report by the American Civil Liberties Union, Banking on Bondage, finds mass incarceration provides a gigantic windfall for one special interest group — the private prison industry — even as current incarceration levels harm the country as a whole.

While the nation's unprecedented rate of imprisonment deprives individuals of freedom, wrests loved ones from their families, and drains the resources of governments, communities, and taxpayers, the private prison industry reaps lucrative rewards. As the public good suffers from mass incarceration, private prison companies obtain more and more government dollars, and private prison executives at the leading companies rake in enormous compensation packages, in some cases totaling millions of dollars.

As incarceration rates skyrocket, the private prison industry expands at exponential rates, holding ever more people in its prisons and jails, and generating massive profits. Private prisons for adults were virtually non-existent until the early 1980s, but the number of prisoners in private prisons increased by approximately 1600% between 1990 and 2009.

Today, for-profit companies are responsible for approximately 6% of state prisoners, 16% of federal prisoners, and, according to one report, nearly half of all immigrants detained by the federal government. In 2010, the two largest private prison companies alone received nearly $3 billion dollars in revenue, and their top executives, according to one source, each received annual compensation packages worth well over $3 million.

On Wednesday, a top law enforcement official became the first to say publicly he believed former ballboy Bobby Davis was a victim and former Syracuse University basketball coach Bernie Fine had abused him, reported The Associated Press.

At his news conference to explain that the statute of limitations would keep him from conducting an investigation, Onondaga County District Attorney William Fitzpatrick addressed Davis directly.

"Bobby, I'm sorry it took so long," he said. "I wish I had met you as a prosecutor in 2002. Even more importantly, I wish I had met you as a prosecutor back in the 1980s. We wouldn't be here today."

Fitzpatrick laid the blame squarely on Fine.

"Hasn't Bernie Fine caused enough pain in this community?" Fitzpatrick said. Fitzpatrick said his investigation started out to answer several questions, among them: Were Davis and Lang being truthful?

"On almost every single criteria, Bobby Davis came out as a credible person," the district attorney said. "Mike Lang also comes across as a credible person."

Fitzpatrick also directed personal comments to Lang , "For Mike Lang, who still feels he could have done more to help his little brother: Mike, it's never too late to do the right thing," he said. "And let it be known by everybody in this room that you did just that: The right thing."

“It's not proper for me to say Bernie Fine is guilty," he said. "What I'm saying to you is there's no doubt in my mind that if presented with the two victim's today, there would be criminal charges against Bernie Fine that I would ethically feel comfortable asking a jury to convict him beyond a reasonable doubt."

“It’s saying something without saying it,” New York defense attorney Ed Menkin told WSYR-TV. "Guilt is something that's determined in a court of law. Not in the newsroom and not in the coffee shop. That's a very heavy kind of accusation. That's a very kind of heavy statement to make."

Menkin said it’s very unusual for a prosecutor to comment on someone’s credibility before a court proceeding.

Apparently in Onondaga County the DA is the also the judge, jury and with regard to Fine the executioner. Since when does a prosecutor who is barred from prosecuting a case talk about how good the case would be if he could prosecute it.

How about the U.S Constitution? The Sixth Amendment provides that an accused has the right to confront witnesses against him. Not in Onondaga County. The DA can dispense with the constitution when its a high profile case.

The statute of limitation was created for a purpose. The facts related to old cases can sometimes get a little murky. Evidence can disappear, stories can change. Yet this DA can finger someone in the court of public opinion that he acknowledges he can't convict in court.

Fine never gets his day in court--but the DA tells all the world that if there was a trial ethically he could ask for a verdict of guilty beyond a reasonable doubt. I'm not so sure ethics has entered into the equation in Onondaga County.

Wednesday, December 7, 2011

The New York Times is reporting that Jerry Sandusky, the former Penn State assistant football coach who was charged last month with 40 counts of sexual abuse against eight boys, was arrested again on new sexual abuse charges after grand jury testimony by two additional accusers.

Both of the accusers testified that they, like the eight other alleged victims, met Mr. Sandusky through the Second Mile charity he founded in 1977. One of the accusers testified that he met Mr. Sandusky in 2004 when he was 11 or 12. He told the grand jury that Mr. Sandusky sexually assaulted him over a period of years, raping him and forcing him to perform oral sex.

Sandusky, in the center of the Penn State sex scandal and cover-up, will apparently spend the night in jail. His has bond has been adjusted from $100,000 to $250,000.

Michael Morton spent almost 25 years in a Texas prison for allegedly murdering his wife. He was exonerated and now his legal team armed with court-given power not typically available to defense lawyers, have pried open investigative files and forced former Williamson County District Attorney Ken Anderson to answer questions under oath and against his will, according to the Austin American-Statesman.

Bennett Gershman, a law professor at Pace University in White Plains, N.Y., and the author of several books on prosecutorial ethics, said several states have created innocence commissions to examine wrongful convictions in hopes of avoiding future mistakes.

But Gershman said he has heard of no similar post-exoneration investigations led by defense lawyers that seek to assign blame for a wrongful conviction."I just find this whole procedure extremely unusual," he told the American-Statesman.

On Dec. 19, Morton's lawyers will provide a written report of their findings to District Judge Sid Harle, who took over Morton's case in August. They will conclude by asking Harle to take action against Anderson, though what type of action is something Morton's lawyers are keeping to themselves for the moment, reported the American-Statesman.

Tuesday, December 6, 2011

Last week I wrote about Robert Kennedy's assassin Sirhan Sirhan and his Manchurian defense. This week a would-be assassin is in the news. John Hinckley who tried very hard and came very close to assassinating President Ronald Reagan is looking for more free time out of the hospital.
Hinckley's attorney, Barry Levine complained this week that alleged prosecutor misstatements are “poisoning the community” in Virginia where Hinckley spends time visiting his mother, reported the Legaltimes blog.
Hinckley resides at St. Elizabeths hospital in Southeast Washington but has been allowed visits to Williamsburg, Va. U.S. District Judge Paul Friedman is presiding over an evidentiary hearing to determine whether Hinckley should be allowed more freedom from the hospital.
Prosecutors are opposed to any additional freedom from the hospital, where Hinckley has received psychiatric treatment stemming from the attempted assassination of President Ronald Reagan in 1981. Government lawyers contend Hinckley remains a danger to the community, reported the Legaltimes.

Monday, December 5, 2011

Richard Wexler of the National Coalition for Child Protection Reform recently wrote in Youth Today, “In the wake of the Penn State scandal, that one-in-four / one-in-six claim has become nearly ubiquitous. And despite it turning up in scores of news stories and opinion pieces I have found not one that cited an actual study.”

Wexler makes the argument in Youth Today, that the best available estimates, from comprehensive reviews of multiple studies suggest that 10 to 12 percent of girls and five to six percent of boys are victims of child sexual abuse. Those numbers are plenty serious enough. It’s plenty of reason for concern and action – but not the kind of action that those pushing the hyped numbers want, like urging - or forcing - anyone and everyone to report anything and everything to child abuse hotlines. That would only deluge those hotlines with more false reports, leaving workers less time to find children in real danger.

Joette Katz, a child protective services administrator in Connecticut suggests that expanding reporting requirements would subject thousands of children who were not otherwise abused to the trauma of a child abuse investigation.

Some of those children likely would end up in foster care, which has problems of its own. According to Wexler, most foster parents try to do the best they can for the children in their care, however research suggests abuse in one-quarter to one-third of foster homes. The record of group homes and institutions is worse. The accused in the Penn State sex scandal and cover-up, Jerry Sandusky, was a foster parent. His charity began as a group home.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.